Director of Public Prosecutions v Bostanxhiu

[2015] VCC 475

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-00320

DIRECTOR OF PUBLIC PROSECUTIONS

v

ALKET BOSTANXHIU

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JUDGE:	HIS HONOUR JUDGE JORDAN
WHERE HELD:	Melbourne
DATE OF HEARING:	22 April 2015
DATE OF SENTENCE:	22 April 2015
CASE MAY BE CITED AS:	DPP v Bostanxhiu
MEDIUM NEUTRAL CITATION:	[2015] VCC 475

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Sim	Office of Public Prosecutions
For the Offender	Mr P. Dunn	Doogue O’Brien George

HIS HONOUR: 

1Mr Alket Bostanxhiu, you have pleaded guilty to one charge of cultivating a narcotic plant, namely cannabis, in a quantity that was not less than the commercial quantity.  It carries a maximum sentence of 25 years' imprisonment.  You have also pleaded guilty to one charge of theft of electricity to the value of $10,364.  It carries a maximum sentence of ten years' imprisonment.  You have pleaded guilty at the earliest opportunity and I take that into account.  The circumstances of your offending as a crop-sitter over a period of some six weeks are set out in the facts described in the Prosecution Opening (exhibit 1).  Such facts are admitted by the defence.  They need little elaboration.

2You received rent-free accommodation and use of a car but were not involved in receiving any proceeds from the cultivation of the cannabis.  Your role can be properly described as a crop-sitter.  You have played no part in the setting up involved in the enterprise.  I still regard your offending as a serious example involving your minding or sitting in circumstances of a sophisticated electrical and hydroponic enterprise.  While you were only at the premises some six weeks, plants were both growing, while others had matured to the stage of being dried and bagged.  I accept you had no prior criminal history in this country or elsewhere. 

3You are 39 years of age.  Your personal history is set out in the chronology and defence submissions (exhibit 1) - I think as to the Prosecution Opening, I said exhibit 1, it should be exhibit A - as well as in the report from Mr Jeffrey Cummins, consultant and forensic psychologist (exhibit 2).  The details do not need any great elaboration.  You fled Kosovo due to civil violence and made a new life in United Kingdom.  You had a partner there with whom you had a son, but the relationship with the lady has not progressed.  You worked mainly in construction and visited Australia on a tourist visa in January 2014. 

4I accept your offending will probably lead to your deportation on release from prison.  You are alone in this country.  In the time you have been in prison, you have had no visitors.  Your time on remand has been spent productively and lends to the positive view I have formed about remorse as well as your real prospects of rehabilitation.  I accept in your case the guilty pleas do indicate remorse, especially when taken together with the report of Mr Jeffrey Cummins and his comments, which I accept, especially at paragraph 29 of exhibit 2.  Other relevant matters in regard to mitigation include that prison is likely to be more onerous for you.  Your English language skills are not great.  You have no support at all from any family or friends in this country.  In all the circumstances, I accept that mercy warrants a lower non-parole period than is often given. 

5As well as the matters personal to you, I must take into account other relevant sentencing considerations.  General deterrence and specific deterrence must be given weight in the sentence.  The community will not tolerate offending which seriously adds to the availability of narcotics in our society.  The message must be clear that appropriate punishment will result in these circumstances.  Your sentence must manifest the community's denunciation of your conduct, and impose just punishment.  I must protect the community from any repetition of this type of offending and seek to deter you and others from further offending by way of cultivation of narcotics and theft.

6In the circumstances I have no option but to impose an immediate term of imprisonment. You are convicted on charge 1 and sentenced to two years' imprisonment. You are convicted on charge 2 and sentenced to three months' imprisonment. I direct that one month of that three months be served cumulatively with the head sentence. Accordingly, the total effective sentence is two years and one month with a non-parole period of 13 months. I declare 134 days pre-sentence detention pursuant to s.18 of the Sentencing Act. Pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty, I would have imposed a sentence on charge 1 of three years' imprisonment with a non-parole period of two years and on charge 2, a sentence of four months, two months of which were cumulative to the head sentence. I make the three ancillary orders by consent. Those orders are (1) Forensic Sample Order pursuant to s.464ZF of the Crimes Act (1958), (2) Disposal order pursuant to s.77(1) of the Confiscation Act (1997) and (3) Compensation order payable to Lumo Energy in the sum of $10,364.

7I need to explain to you, Mr Bostanxhiu, with respect to the order requiring a forensic sample, that you are required to provide a scraping from your mouth in order to obtain a saliva sample. I must inform you that at the time of that request being made that if you do not consent to the taking of that mouth scraping under the supervision of an authorised member of the police force, then the police may use reasonable force to enable that forensic procedure to be conducted. 

8Are there any other matters that need any attention?

9MR SIM:  No, but could I thank Your Honour for sentencing today. 

10MR DUNN:  I thank counsel for their assistance.

11HIS HONOUR:  Do you want me to sign those other orders?  Nothing else required, gentlemen?  You can take Mr Bostanxhiu.

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